On the Issue of Protecting the Rights of Participants in Shared-Equity Construction in the Bankruptcy Procedure of the Builder

Abstract

The purpose of the study is to update the problem of restoring the balance of interests of creditors – participants in shared-equity construction in the bankruptcy case of the developer. We are talking not only about the priority protection of the rights and legitimate interests of citizens as participants in the construction, but also other persons who are not related to those within the meaning of bankruptcy legislation and suffered as a result of the bankruptcy of the debtor-builder. There is a lack of certainty in the implementation of legal regulation, which negatively affects the existing judicial practice. The current legal regulation assumes the unequal status of participants in shared-equity construction within the framework of the bankruptcy procedure, which has become the subject of constitutional proceedings. The relevance of the study lies in the assessment of the changes made in 2019 to the Law on Equity Participation in Construction and the position of the Constitutional Court of the Russian Federation, expressed in the Resolution of July 21, 2022. The practical significance of the study is determined by the conclusions made by the authors of the article and expressed in an attempt to state the emerging contradictions in the legal positions of courts of various instances on the protection of the rights of participants in shared construction in the bankruptcy procedure of the developer. The article also considers certain aspects of the transition of the rights and obligations of the developer to the public law company «Fund for the Development of Territories», acting in order to protect the rights of citizens – participants in shared construction. It is emphasized that the Fund has no obligations to fulfill the obligations of the builder to collateral creditors. There is a contradictory law enforcement practice on this issue. It is concluded that it is necessary to further improve the legislative regulation of mechanisms for protecting the rights of participants in shared construction.